What Now in the Confirmation Process?

Under Article II of the Constitution, the president has the sole power to nominate a Supreme Court Justice, and the Senate provides advice and consent. On Monday night, President Trump nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy. The next public step will be a hearing held by the Senate Judiciary Committee, consisting of 11 Republicans and 10 Democrats, during which Kavanaugh will testify. The Committee will then vote whether to advance Kavanaugh’s nomination to the full Senate, which in turn will vote on whether to approve the nomination; if a majority of the Senate votes yes, then Kavanaugh will take two oaths: The Constitutional Oath, and The Judicial Oath. That’s the nomination process in a nutshell, but there is also a lot that happens behind the scenes.

Some Political Background

As the Washington Examiner discusses, there are currently 51 Republican Senators, and 49 Democrats, but it appears that Republican Senator John McCain will not be voting due to his illness. After the Democrats tried to filibuster the nomination of Neil Gorsuch, Republicans changed the procedures to eliminate the requirement of a 60-vote supermajority to move to a vote, taking away the Democrats’ ability to filibuster this confirmation. (The New York Times has more on this). Interestingly, some attribute the change to former Democratic Senate Majority Leader’s Harry Reid call for filibuster reform, suggesting that “Democrats have no one to blame but themselves” and “Democrats set the stage for their powerlessness.”

As Full Frontal’s Samantha Bee explains in this video segment, Republicans pushed for a delay in filling Justice Antonin Scalia’s seat on the bench until after the 2016 election, refusing to confirm President Obama’s nominee Merrick Garland. In response to Justice Kennedy’s retirement, some have argued that the Senate should similarly wait until after the upcoming midterm elections in November. These concerns arise out of, among other things, what another Trump appointee could mean for critical issues like reproductive rights and the possibility of Roe v. Wade being overruled (see this Economist article for a more detailed discussion of that specific issue.) This article by the National Center for Transgender Equality covers some other issues that could be at stake, such as employment rights and access to healthcare.

Although Democrats can’t stop the confirmation process with a filibuster, they may try other means of keeping the Court from moving in a more conservative direction – as Politifact explains, their so-called playbook includes at least 5 options: (1) flipping moderate Republican Senators; (2) convincing all 47 Democrats and two Independents to skip the hearing, which would render Republicans unable to confirm; (3) passing laws that would impose term limits on Justices; (4) convincing the Senate Judiciary Committee that Trump should not be able to fill the vacancy until the Mueller investigation has concluded; and (5) court packing, which would involve having Congress add more seats to the Supreme Court, with the idea that a future liberal president could fill those seats with nominees that would restore the political balance of the bench.

Going Forward

Typically, someone nominated by a President who is from the same party as the Senate majority is thought to be expected to see a positive result from the confirmation hearings. The last person to be outright rejected by the Senate after confirmation hearings was Judge Robert Bork; that seat ultimately went to Justice Kennedy (read this Hill article if you’re interested in learning more about that, and the ideological differences between Judge Bork and Justice Kennedy.) As Peter Paccone explains in this TED-Ed video, the hearing in front of the Senate Judiciary Committee for a contentious nominee can take a long time, so we might be looking at a lengthy confirmation hearing process. The longest time that a nominee has had to wait for a result once received in Congress was 125 days, which involved 19 public hearings that began 12 days after Justice Brandeis was nominated by President Wilson in 1916. Since 1975, the shortest time from nomination to a final vote was in 1975 when the now-retired Justice Stevens waited just 19 days to be confirmed. If you’re interested in more in-depth information about Supreme Court nominations and hearings, read Barry J. McMillion’s paper for the Congressional Research Service on Supreme Court appointments.

Although there have been nominees who received unanimous support in the Senate, the most recent being Justice Kennedy himself, much of the coverage of his retirement has used “game frame” language, which can fuel an “us versus them” type of attitude and lends itself to a contentious confirmation process. Indeed, that is just what former U.S. Senator Kelly Ayotte expects is in store for us: “I think, unfortunately, this will be a political fight.” Linda Greenhouse of Yale Law School writes “The Senate confirmation process has become so degraded that to call it a joke is way too kind.” With the divisive political coverage and sharp criticism of the process itself, as well as the significance of Justice Kennedy’s position as swing justice, it is hardly surprising that Jack Goldsmith, a professor at Harvard Law School, called Justice Kennedy’s retirement “the most consequential event in American Jurisprudence at least since Bush v. Gore in 2000 and probably since Roe v. Wade in 1973.”

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020 and was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

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